Thomas v. Social Security Administration, Commissioner

Filing 16

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 6/22/2015. (YMB)

FILED
2015 Jun-22 PM 03:40
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

YVETTE THOMAS
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner, Social Security
Administration,

Defendant.

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Civil Action Number
2:14-cv-1109-AKK

MEMORANDUM OPINION
Plaintiff Yvette Thomas (“Thomas”) brings this action pursuant to Section
205(g) of the Social Security Act (“the Act”), 42 U.S.C. § 205(g), seeking review
of the final adverse decision of the Commissioner of the Social Security
Administration (“SSA”). This court finds that the Administrative Law Judge
(“ALJ”) applied the correct legal standard and that his decision—which has
become the decision of the Commissioner—is supported by substantial evidence.
Therefore, the court AFFIRMS the decision denying benefits.
I. Procedural History
Thomas filed her application for Title II Disability Insurance Benefits on
February 21, 2012, alleging a disability onset date of February 3, 2012 due to
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Graves’ disease, sarcoidosis, uveitis, back injuries, irritable bowel symdrone, and
acute sinusitis. (R. 82, 138, 142). After the SSA denied her application, Thomas
requested a hearing before an ALJ. (R. 82-83, 38-67). The ALJ subsequently
denied Thomas’s claim, (R. 31), which became the final decision of the
Commissioner when the Appeals Council refused to grant review, (R. 1-4).
Thomas then filed this action pursuant to § 205(g) on June 11, 2014. Doc. 1.
II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the
correct legal standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988);
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§ 405(g)
and 1383(c) mandate that the Commissioner’s “factual findings are conclusive if
supported by ‘substantial evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990). The district court may not reconsider the facts, reevaluate the
evidence, or substitute its judgment for that of the Commissioner; instead, it must
review the final decision as a whole and determine if the decision is “reasonable
and supported by substantial evidence.” See id. (citing Bloodsworth v. Heckler,
703 F.2d 1233, 1239 (11th Cir. 1983)).

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Substantial evidence falls somewhere between a scintilla and a
preponderance of evidence; “[i]t is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Martin, 849 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported by
substantial evidence, the court must affirm the Commissioner’s factual findings
even if the preponderance of the evidence is against the Commissioner’s findings.
See Martin, 894 F.2d at 1529. While the court acknowledges that judicial review
of the ALJ’s findings is limited in scope, it notes that the review “does not yield
automatic affirmance.” Lamb, 847 F.2d at 701.
III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(i)(I)(A). A physical or
mental impairment is “an impairment that results from anatomical, physiological,
or psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).

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Determination of disability under the Act requires a five step analysis. 20
C.F.R. § 404.1520(a)-(f). Specifically, the Commissioner must determine in
sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

whether the impairment meets or equals one listed by the Secretary;

(4)

whether the claimant is unable to perform his or her past work; and

(5)

whether the claimant is unable to perform any work in the national
economy.

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “An affirmative
answer to any of the above questions leads either to the next question, or, on steps
three and five, to a finding of disability. A negative answer to any question, other
than step three, leads to a determination of ‘not disabled.’” Id. at 1030 (citing 20
C.F.R. § 416.920(a)-(f)). “Once a finding is made that a claimant cannot return to
prior work the burden shifts to the Secretary to show other work the claimant can
do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
Lastly, where, as here, a plaintiff alleges disability because of pain, she must
meet additional criteria. In this circuit, “a three part ‘pain standard’ [is applied]
when a claimant seeks to establish disability through his or her own testimony of
pain or other subjective symptoms.” Holt v. Barnhart, 921 F.2d 1221, 1223 (11th
Cir. 1991). Specifically,
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The pain standard requires (1) evidence of an underlying medical
condition and either (2) objective medical evidence that confirms the
severity of the alleged pain arising from that condition or (3) that the
objectively determined medical condition is of such a severity that it
can be reasonably expected to give rise to the alleged pain.1
Id. However, medical evidence of pain itself, or of its intensity, is not required:
While both the regulations and the Hand standard require objective
medical evidence of a condition that could reasonably be expected to
cause the pain alleged, neither requires objective proof of the pain
itself. Thus under both the regulations and the first (objectively
identifiable condition) and third (reasonably expected to cause pain
alleged) parts of the Hand standard a claimant who can show that his
condition could reasonably be expected to give rise to the pain he
alleges has established a claim of disability and is not required to
produce additional, objective proof of the pain itself. See 20 CFR §§
404.1529 and 416.929; Hale [v. Bowen, 831 F.2d 1007, 1011 (11th
Cir. 1987)].
Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1215 (11th Cir. 1991) (parenthetical
information omitted) (emphasis added). Moreover, “[a] claimant’s subjective
testimony supported by medical evidence that satisfies the pain standard is itself
sufficient to support a finding of disability.” Holt, 921 F.2d at 1223. Therefore, if
a claimant testifies to disabling pain and satisfies the three part pain standard, the
ALJ must find a disability unless the ALJ properly discredits the claimant’s
testimony.
Furthermore, when the ALJ fails to credit a claimant’s pain testimony, the
ALJ must articulate reasons for that decision:

1

This standard is referred to as the Hand standard, named after Hand v. Heckler, 761 F.2d 1545, 1548 (11th Cir.
1985).

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It is established in this circuit that if the [ALJ] fails to articulate reasons for
refusing to credit a claimant’s subjective pain testimony, then the [ALJ], as a
matter of law, has accepted that testimony as true. Implicit in this rule is the
requirement that such articulation of reasons by the [ALJ] be supported by
substantial evidence
Hale, 831 F.2d at 1012. Therefore, if the ALJ either fails to articulate reasons for
refusing to credit the plaintiff’s pain testimony, or if the ALJ’s reasons are not
supported by substantial evidence, the court must accept as true the pain testimony
of the plaintiff and render a finding of disability. Id.
IV. The ALJ’s Decision
In performing the five step analysis, the ALJ found that Thomas had not
engaged in substantial gainful activity since February 3, 2012, and therefore met
Step One. (R. 25). Next, the ALJ found that Thomas satisfied Step Two because
she suffered from the severe impairments of “chronic fatigue, Graves’ disease,
sarcoidosis, reduced visual acuity, degenerative disc disease of the lumbar spine,
and neck pain.” Id. The ALJ then proceeded to the next step and found that
Thomas did not satisfy Step Three since she “does not have an impairment or
combination of impairments that meets or equals the severity of one of the listed
impairments.” Id. Although the ALJ answered Step Three in the negative,
consistent with the law, see McDaniel, 800 F.2d at 1030, he proceeded to Step
Four, where he determined that Thomas has the residual functional capacity (RFC)
to “perform medium work . . . except that [Thomas] cannot drive, climb, or work

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around heights, or perform more than simple, non-complex tasks.” Id. In light of
Thomas’s RFC, the ALJ determined that Thomas “is unable to perform any past
relevant work . . . as a radiology technologist.” (R. 29). Lastly, in Step Five, the
ALJ considered Thomas’s age, education, work experience, and RFC, and
determined “there are jobs that exist in significant numbers in the national
economy that [Thomas] can perform.” (R. 30). Therefore, the ALJ found that
Thomas “has not been under a disability, as defined in the Social Security Act,
from February 3, 2012.” (R. 31).
V. Analysis
Thomas takes issue with the ALJ’s finding that Thomas can perform
medium work because the ALJ afforded limited weight to the opinion of the
consultative examining physician (Dr. Latesha Elopre) while affording significant
weight to the non-examining state agency physicians (Dr. Alka Bishnoi and Dr.
Faye-Ann Ramiogan). See doc. 14 at 7-12. Thomas contends that the ALJ erred in
doing so because “the opinion of a non-examining physician cannot by itself
constitute substantial evidence that justifies the rejection of . . . an examining
physician.”2 Doc. 14 at 11 (emphasis added). While Thomas is generally correct

2

While ALJs “will evaluate every medical opinion [they] receive,” 20 C.F.R. § 404.1527(d), they will not
necessarily afford all medical sources equal weight. Rather, the SSA classifies acceptable medical sources into three
types: nonexamining sources, nontreating (but examining) sources, and treating sources. A “nonexamining source”
is “a physician, psychologist, or other acceptable medical source who has not examined [the claimant] but provides a
medical or other opinion in [the claimant’s] case.” 20 C.F.R. § 404.1502. A “nontreating source” (but examining
source) has examined the claimant but does not have an “ongoing treatment relationship” with the claimant. Id.

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that, “[t]he opinions of nonexamining, reviewing physicians . . . when contrary to
those of the examining physicians, are entitled to little weight, and standing alone
do not constitute substantial evidence,” Sharfarz v. Bowen, 825 F.2d 278, 280
(11th Cir. 1987), she overlooks that an ALJ does not “err in assigning more weight
to the expert opinions of the non-examining state agency physicians,” as long as he
“[does] not rely solely on [those] . . . opinion[s] but consider[s] the record in its
entirety,” Randolph v. Astrue, 291 F. App’x 979, 982 (11th Cir. 2008). Here, the
ALJ specifically noted that the opinions of the nonexamining physicians “deserve
some weight” because they are consistent with Thomas’s physical examinations,
which demonstrate “minimal abnormalities.” (R. 29). Indeed, Thomas’s examining
physicians consistently noted that she experiences normal musculoskeletal
function, does not experience muscle weakness or muscle pain, has no trouble
walking, and demonstrates normal gait, station and posture. (R. 249, 322, 323, 329,
332, 360, 361, 409). In fact, even Dr. Elopre noted that Thomas experiences
“normal range of motion throughout all joints,” is “able to perform tandem gait and
squat/bend without difficulty,” and experiences “5/5 strength in all muscle
groups.” (R. 301, 302).3 Because this evidence supports the ALJ’s determination

3

Along the same lines, to the extent Thomas is challenging the ALJ’s decision to afford limited weight to the
opinion of Dr. Elopre, the court notes that the ALJ properly discounted Dr. Elopre’s opinion that “all postural
limitations apply” after noting that Dr. Elopre’s opinions “are inconsistent with [her own] findings . . . and . . . with
the longitudinal treatment records showing that [Thomas] has no problems ambulating.” (R. 28). Indeed, Dr. Elopre
noted in her own examination that Thomas experiences “normal range of motion throughout all joints,” is “able to
perform tandem gait and squat/bend without difficulty,” and experiences “5/5 strength in all muscle groups.” (R.
301, 302). This evidence, as the ALJ pointed out, is inconsistent with Dr. Elopre’s opinion that Thomas experiences

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that Thomas can perform medium work involving “lifting no more than [fifty]
pounds at a time with frequent lifting or carrying of objects weighing up to 25
pounds,” 20 C.F.R. § 404.1567(c), and because the ALJ did not rely solely on the
opinion of a non-examining physician, the court rejects Thomas’s arguments on
this issue.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination
that Thomas is not disabled is supported by substantial evidence, and that the ALJ
applied proper legal standards in reaching this determination. Therefore, the
Commissioner’s final decision is AFFIRMED. A separate order in accordance
with the memorandum of decision will be entered.
DONE the 22nd day of June, 2015.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

“all postural limitations.” Moreover, Dr. Elopre’s opinions are inconsistent with medical records establishing that
Thomas’s strength and musculoskeletal function is normal, that she has no trouble walking, and demonstrates
normal gait, station and posture. (R. 322, 323, 360, 361). This medical evidence supports the ALJ’s decision to
afford limited weight to Dr. Elopre’s opinions. See Beegle v. Soc. Sec. Admin., Com’r, 482 F. App’x 483, 488 (11th
Cir. 2012) (the ALJ was justified in assigning non-treating examining physician’s opinion “little probative weight,”
because evidence on the record contradicted it.).

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